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35.One of the proven methods of examining the legislative competence
of a legislature with regard to an enactment is by the application of
the doctrine of pith and substance. This doctrine is applied when
the legislative competence of the legislature with regard to a
particular enactment is challenged with reference to the entries in
various lists. If there is a challenge to the legislative competence,
the courts will try to ascertain the pith and substance of such
enactment on a scrutiny of the Act in question. In this process, it is
necessary for the courts to go into and examine the true character
of the enactment, its object, its scope and effect to find out whether
the enactment in question is genuinely referable to a field of the
legislation allotted to the respective legislature under the
constitutional scheme. This doctrine is an established principle of
law in India recognized not only by this Court, but also by various
High Courts. Where a challenge is made to the constitutional
validity of a particular State Act with reference to a subject
mentioned in any entry in List I, the Court has to look to the
substance of the State Act and on such analysis and examination,
if it is found that in the pith and substance, it falls under an entry
in the State List but there is only an incidental encroachment on
any of the matters enumerated in the Union List, the State Act
would not become invalid merely because there is incidental
encroachment on any of the matters in the Union List.

37.Again, a Constitutional Bench of this Court while discussing the
said doctrine in Kartar Singh v. State of Punjab [(1994) 3 SCC
569] observed as under:

"60. This doctrine of `pith and substance' is applied when
the legislative competence of a legislature with regard to a
particular enactment is challenged with reference to the
entries in the various lists i.e. a law dealing with the subject
in one list is also touching on a subject in another list. In
such a case, what has to be ascertained is the pith and
substance of the enactment. On a scrutiny of the Act in
question, if found, that the legislation is in substance one on
a matter assigned to the legislature enacting that statute,
then that Act as a whole must be held to be valid
notwithstanding any incidental trenching upon matters
beyond its competence i.e. on a matter included in the list
belonging to the other legislature. To say differently,
incidental encroachment is not altogether forbidden."

39.In Bharat Hydro Power Corpn. Ltd. v. State of Assam [(2004) 2
SCC 553], the doctrine of pith and substance came to be
considered, when after referring to a catena of decisions of this
Court on the doctrine it was laid down as under:
"18. It is likely to happen from time to time that enactment
though purporting to deal with a subject in one list touches
also on a subject in another list and prima facie looks as if
one legislature is impinging on the legislative field of
another legislature. This may result in a large number of
statutes being declared unconstitutional because the
legislature enacting law may appear to have legislated in a
field reserved for the other legislature. To examine whether
a legislation has impinged on the field of other legislatures,
in fact or in substance, or is incidental, keeping in view the
true nature of the enactment, the courts have evolved the
doctrine of `pith and substance' for the purpose of
determining whether it is legislation with respect to matters
in one list or the other. Where the question for determination
is whether a particular law relates to a particular subject
mentioned in one list or the other, the courts look into the
substance of the enactment. Thus, if the substance of the
enactment falls within the Union List then the incidental
encroachment by the enactment on the State List would not
make it invalid. This principle came to be established by the
Privy Council when it determined appeals from Canada or
Australia involving the question of legislative competence of
the federation or the States in those countries. This doctrine
came to be established in India and derives its genesis from
the approach adopted by the courts including the Privy
Council in dealing with controversies arising in other
federations. For applying the principle of `pith and
substance' regard is to be had (i) to the enactment as a
whole, (ii) to its main objects, and (iii) to the scope and effect
of its provisions. For this see Southern Pharmaceuticals &
Chemicals v. State of Kerala [(1981) 4 SCC 391], State of
Rajasthan v. G. Chawla [AIR 1959 SC 544], Amar Singhji v.
State of Rajasthan [AIR 1955 SC 504], Delhi Cloth and
General Mills Co. Ltd. v. Union of India [(1983) 4 SCC 166]
and Vijay Kumar Sharma v. State of Karnataka [(1990) 2
SCC 562]. In the last-mentioned case it was held:

41.We find no merit in the contention that the MCOCA, in any way,
deals with punishing insurgency directly. We are of the considered
view that the legislation only deals with "insurgency" indirectly only
to bolster the definition of "organized crime".

42.However, even if it be assumed that "insurgency" has a larger role
to play than pointed out by us above in the MCOCA, we are of the
considered view that the term "promoting insurgency" as
contemplated under Section 2(1)(e) of the MCOCA comes within the
concept of public order. From the ratio of the judgments on the
point of public order referred to by us earlier, it is clear that
anything that affects public peace or tranquility within the State or
the Province would also affect public order and the State
Legislature is empowered to enact laws aimed at containing or
preventing acts which tend to or actually affect public order. Even
if the said part of the MCOCA incidentally encroaches upon a field
under Entry 1 of the Union list, the same cannot be held to be ultra
vires in view of the doctrine of pith and substance as in essence the
said part relates to maintenance of Public Order which is
essentially a State subject and only incidentally trenches upon a
matter falling under the Union List.